Cammack the Cook, L.L.C., Jason Cammack, Lauren Cammack, and Milton Cammack v. Marta Beyen Eastburn ( 2009 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00020-CV
______________________________
CAMMACK THE COOK, L.L.C., JASON CAMMACK,
LAUREN CAMMACK, AND MILTON CAMMACK, Appellants
V.
MARTA BEYEN EASTBURN, Appellee
On Appeal from the County Court at Law No. 2
Gregg County, Texas
Trial Court No. 2007-2609-CCL2
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
OPINION
Cammack the Cook, L.L.C., Jason Cammack, Lauren Cammack, and Milton Cammack
(collectively referred to as the Cammacks) appeal from a trial court's summary judgment granted in
favor of Marta Beyen Eastburn. The Cammacks contend that the trial court misconstrued the parties'
lease agreement in granting Eastburn's motion for summary judgment and in denying the Cammacks'
partial motion for summary judgment. We affirm in part and reverse and remand in part for
adjudication of the Cammacks' remaining counterclaims.
I. Factual and Procedural Background
Eastburn leased several rooms in her interior decorating store to the Cammacks for use as a
restaurant and catering facility. Despite the relatively short term of the lease, the Cammacks
extensively remodeled the property in order to convert it into a functioning restaurant.1 The
remodeling took two months, cost between $60,000.00 to $70,000.00, and included changes made
to the concrete structure, and plumbing and electrical systems. A "gigantic," 1,500-gallon "grease
trap was put in the backyard using a crane." Holes were cut into: the ceiling and roof to attach
equipment for exhaust fans, the floor and tile to install several eight-by-eight-inch floor drains and
kitchen sinks emptying into the sewer system, and the walls to make space for gas and water pipes.
Can lights were discarded and replaced with fluorescent lights, interior walls were removed and
1
The lease was entered on June 6, 2005, and expired by its own terms on June 30, 2007.
2
replaced with new drywall covered with FRP,2 and stainless steel was mounted or glued on the wall
behind the stove in order to shield it from heat.
The Cammacks were able to make timely rental payments for the first four months after the
renovations were complete. However, late rental payments began in January 2006 and continued
until August 2006. Exasperated with these late payments, Eastburn increased the Cammacks' initial
security deposit of $3,115.00 to $6,230.00. The additional deposit failed to deter the Cammacks
from making further late rental payments in September, October, and November 2006.
Pursuant to the lease, Eastburn immediately accelerated the due date of all rents. A written
notification of default, notice of acceleration, and demand for payment was sent to the Cammacks
on October 12, 2006. They did not comply with the notice, the lease was terminated, and Eastburn
claimed the Cammacks did not vacate the premises in a timely fashion. She filed a petition in county
court for breach of lease of the holdover provision, failure to make timely rental payments, and
failure to remove improvements and return the premises to its previous condition. Eastburn further
alleged the Cammacks left the property in a "filthy, deplorable condition," and, in violation of lease
terms, failed to remove alterations, decorations, and additions in order to return the premises to the
condition in which it previously existed. Included in the laundry list of complaints were: vents on
the roof which were not removed, holes in the roof, missing or damaged molding, damaged tile and
flooring, a damaged window, a grease trap in the backyard which had to be removed and required
2
Fiberglass-reinforced plastic.
3
the ground to be restored, plumbing and gas fixtures which should have been capped and covered,
abandoned items, and general failure to clean the premises.
The Cammacks' answer denied holdover tenancy, arguing that the lease expired by its own
terms on July 30, 2007, that all kitchen renovations were completed with Eastburn's consent, that
they had no duty to restore the premises, and that some of the repairs requested were not authorized
by the lease. They also counterclaimed for return of the security deposit and alleged under
Chapter 92 of the Texas Property Code, which only applies to residential leases, that Eastburn was
retaliating against them for failure to repair air conditioning, despite the Cammacks' repeated
demands, and that they were entitled to attorney's fees. TEX . PROP . CODE ANN . §§ 92.331–.333
(Vernon 2007).
The Cammacks next filed a motion for partial summary judgment arguing Eastburn had no
evidence to demonstrate they were holdover tenants. Also, since most of the work completed
included permanent changes to the structure, and "[l]ogic and reality dictates that these items cannot
be removed without damage to either the property, the building or the premises," the Cammacks
argued that the lease provisions did not require them to restore the premises as Eastburn demanded.
Eastburn also filed a motion for summary judgment on her own claims, taking the obverse position.
She provided bid proposals demonstrating that it would cost $19,155.00 to restore the premises and
$16,914.06 to remove the grease trap and fill the hole in the ground. She attached the deposition of
Jason Cammack, who testified no work was done to refurbish or restore the facility. He admitted
4
that the lease required the Cammacks to take FRP off the walls and clean the space and that neither
task was completed. Jason also admitted that he "had an obligation to remove all of my fixtures."
Next, he described the condition in which the Cammacks left the property. Jason clarified cardboard
covered a large hole in the ceiling leading to the attic because the vent was removed, that gas and
water pipes were not capped and were visible in the wall, that an electrical conduit was coming out
of the floor, and that the stainless steel wall shield was not removed. Last, Jason testified the 1,500-
gallon grease trap still contained collections from the kitchen drains.
On December 5, 2008, the Cammacks filed amended counterclaims under Chapter 93 of the
Texas Property Code, which applies to commercial leases. They alleged Eastburn wrongfully
withheld the security deposit, wrongfully excluded them from the premises, and also alleged a cause
of action called "failure of consideration," seeking credit for the weeks of rent in which Eastburn
allegedly failed to repair the air conditioning. On December 19, they filed a "Response to Eastburn's
[Partial] Motion for Summary Judgment Motion to Renew the Cammacks' Motion for Partial
Summary Judgment." While the new counterclaims were briefly mentioned, no summary judgment
was sought on the counterclaims.3
3
"A motion for summary judgment shall state the specific grounds therefor. Except on leave
of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and
served at least twenty-one days before the time specified for the hearing." TEX . R. CIV . P. 166a(c).
We do not construe the Cammacks' brief references to its counterclaims in a motion filed less than
twenty-one days before the summary judgment hearing as a proper motion for summary judgment
on the counterclaims. Also, it appears to us that the Cammacks mistakenly argued, through
references such as "[t]here is at least a fact issue whether Eastburn is entitled to keep all of the
deposit," that summary judgment on Eastburn's claims should be precluded because fact issues
5
The trial court considered the motions for summary judgment on December 30, 2008, and
rendered final judgment awarding Eastburn $36,069.06. Consistent with the affidavit of attorney's
fees and costs, the trial court awarded $19,945.00 in fees and $1,067.10 in costs. On appeal, the
Cammacks essentially argue, in a brief which challenges the reader, that the trial court erred because
the unambiguous lease agreement did not require them to remove improvements made to the
property and restore the premises and that Eastburn did not sufficiently prove damages and attorney's
fees.
The Cammacks also label the following as points of error: (1) "Appellants present an action
against appellee pursuant to Texas Property Code § 93.011"; (2) "Appellants present an action
against appellee pursuant to Texas Property Code § 93.002"; (3) "Appellants present a breach of
contract action against appellee and a defense of failure of consideration from appellee"; (4) "As a
matter of law, appellee is barred from pursuing any holdover claim against appellants. And the final
summary judgment denies appellee's holdover and cleaning claims, to which she fails to object"; and
(5) "Appellants' written objections, to appellee's motion for summary judgment and to her response
to appellants' motion for partial summary judgment, address matters that are not relevant, that do not
authorize summary judgment for appellee and which are not a defense to summary judgment against
her." At a minimum, "[a] complaint on appeal must address specific errors." Velasquez v. Waste
Connections, Inc., 169 S.W.3d 432, 439 (Tex. App.—El Paso 2005, no pet.); Hollifield v. Hollifield,
existed regarding the Cammacks' amended counterclaims.
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925 S.W.2d 153, 155 (Tex. App.—Austin 1996, no pet.). Because these statements, as well as the
corresponding portion of argument, fail to address specific errors made by the trial court, we overrule
these "points of error."
II. Finality of the Summary Judgment
Typically, "[a]n order that adjudicates only the plaintiff's claims against the defendant does
not adjudicate a counterclaim, cross-claim, or third party claim." Lehmann v. Har-Con Corp., 39
S.W.3d 191, 205 (Tex. 2001).4 Thus, before we address the merits of this appeal, we must determine
whether the trial court's summary judgment was final such that it "actually dispose[d] of every
pending claim and party or . . . clearly and unequivocally state[d] that it finally dispose[d] of all
claims and all parties." Id. "[T]he language of an order or judgment can make it final, even though
it should have been interlocutory, if that language expressly disposes of all claims and all parties."
Id. at 200. "[I]ntent to finally dispose of the case must be unequivocally expressed in the words of
the order itself." Id. If that intent is clear from the order, then the order is final and appealable, even
though the record does not provide an adequate basis for rendition of judgment. Id.
4
Disposition of a particular issue may be inferred from other provisions of a judgment,
provided that the inference follows as a necessary implication. Matelski v. Matelski, 840 S.W.2d
124, 126 (Tex. App.—Fort Worth 1992, no writ) (citing Davis v. McCray Refrigerator Sales Corp.,
136 Tex. 296, 150 S.W.2d 377 (1941)). While we believe the trial court's grant of Eastburn's breach
of lease claim necessarily implied a ruling that Eastburn did not wrongfully withhold the security
deposit under the lease, we do not believe the same is true of the wrongful exclusion, and alleged
"failure of consideration," wherein the Cammacks sought credit for the weeks of rent in which
Eastburn allegedly failed to repair the air conditioning.
7
Lehmann explained that a "statement like, 'This judgment finally disposes of all parties and
all claims and is appealable,' would leave no doubt about the court's intention." Id. at 206. The
summary judgment mirrors the Lehmann language, stating "[a]ll relief requested by any party in this
case that is not expressly granted by this judgment is denied. This judgment finally disposes of all
parties and claims in this action, is a final judgment, and is therefore appealable." In such a case,
where the language of the order suggests the court intended the summary judgment to be final, but
adjudicated counterclaims which were not brought by summary judgment, the judgment is "final-
erroneous, but final." Id. at 200.
A judgment that grants more relief than requested is "subject to reversal, but it is not, for that
reason alone, interlocutory." Id. "In those circumstances, the order must be appealed and reversed."
Id. at 206. If we determine Eastburn was not entitled to summary judgment on her claims, the entire
judgment of the trial court will be reversed. Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997).
However, if we determine that "the summary judgment in favor of the plaintiff on its claims was
proper, [we must] affirm the judgment of the trial court in part, reverse in part since only a partial
summary judgment should have been rendered, and remand the case" for further proceedings in the
trial court. Bandera Elec. Coop. v. Gilchrist, 946 S.W.2d 336, 336 (Tex. 1997); Page, 941 S.W.2d
at 102; Jones v. Ill. Employers Ins. of Wausau, 136 S.W.3d 728, 743–44 (Tex. App.—Texarkana
2004, no pet.); Pinnacle Data Servs. v. Gillen, 104 S.W.3d 188, 199 (Tex. App.—Texarkana 2003,
8
no pet.); Klevin v. Tex. Dep't of Criminal Justice--I.D., 69 S.W.3d 341, 344 (Tex. App.—Texarkana
2002, no pet.).
III. Standard of Review
A trial court's summary judgment is reviewed de novo. Laidlaw v. Waste Sys. v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613
(Tex. App.—Texarkana 2008, no pet.). Summary judgment is proper when a movant establishes that
there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. TEX .
R. CIV . P. 166a(c); French v. Gill, 252 S.W.3d 748, 751 (Tex. App.—Texarkana 2008, pet. denied);
Powers v. Adams, 2 S.W.3d 496, 497 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Nixon
v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)). In deciding whether there is a
disputed material fact issue which precludes summary judgment, proof favorable to the nonmovant
will be taken as true. Nixon, 690 S.W.2d at 548–49. We indulge every reasonable inference in favor
of the nonmovant. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex.
2002).
IV. Summary Judgment on Eastburn's Breach of Contract Claim Was Proper
A. The Unambiguous Lease Provisions
Both parties believe the lease's unambiguous language supports their position. We must first
answer the question of whether this lease contract is ambiguous. This is a question of law which we
review de novo. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). We
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cannot ignore the clear language of an unambiguous contract. Consol. Petroleum Partners, I, LLC
v. Tindle, 168 S.W.3d 894, 899 (Tex. App.—Tyler 2005, no pet.). If the lease provision above can
be given a certain or definite meaning or interpretation, it is not ambiguous, and we must simply
apply the language in the lease. Lopez, 22 S.W.3d at 861. However, where there are two reasonable
interpretations of the same language in a document, ambiguity arises. Id.
Construction of the lease provisions was key in resolving the summary judgment. Section
5.2 of the lease stated:
Upon receipt of Landlord's prior written approval, Tenant may from time to
time, at its own expense, alter, renovate or improve the interior of the Premises . . . so
as not to weaken or impair the strength or lessen the value of the Building . . . .
....
At the expiration or other termination of this Lease, and upon obtaining the
prior written consent of Landlord, Tenant shall remove such alterations, decorations,
additions and improvements and restore the Premises as provided in Section 5.5, and
if Tenant fails to do so and moves from the Premises, all such alterations,
decorations, additions and improvements shall become the property of Landlord and
Landlord may, at Tenant's expense, remove all such alterations, decorations,
additions and improvements.
Section 5.5 entitled "Trade Fixtures" provided:
Tenant shall have the right, at the termination of this Lease, to remove any and all
trade fixtures, equipment and other items of personal property not constituting a part
of the freehold which it may have stored or installed in the Premises, including, but
not limited to, counters, shelving, showcases, chairs and movable machinery
purchased or provided by Tenant and which are susceptible of being moved without
damage to the Property . . . ; and provided further that Tenant, at its own cost and
expense, shall repair any damage to the Premises caused thereby. . . . Further, upon
termination of this Lease, or within five (5) days thereafter, Tenant shall replace the
10
wall surfaces in the kitchen are [sic] of the Premises with taped and floated sheet
rock. The right granted Tenant in this Section shall not include the right to remove
any plumbing or electrical fixtures or equipment, heating or air conditioning
equipment, floor coverings (including wall-to-wall carpeting) glued or fastened to the
floors or any paneling, tile or other materials fastened or attached to walls or ceilings,
all of which shall be deemed to constitute a part of the freehold, and, as a matter of
course, shall not include the right to remove any fixtures or machinery that were
furnished or paid for by Landlord. The Premises and the immediate areas in front,
behind and adjacent to it shall be left in a broom-clean condition, and in the condition
in which they existed as of the Lease Commencement Date, normal wear and tear
excepted. . . . If Tenant shall fail to remove its trade fixtures or other property at the
termination of this Lease or within five (5) days thereafter, such fixtures and other
property not removed by Tenant shall be deemed abandoned by Tenant, and, at the
option of Landlord, shall become the property of Landlord, and Landlord may, at
Tenant's expense, remove such trade fixtures and other property and store or dispose
of the same, at Tenant's sole cost and expense.
Section 10.5, entitled "Surrender of Premises and Holding Over," stated:
At the expiration of the tenancy, Tenant shall surrender the Premises in good
condition, reasonable wear and tear excepted . . . Tenant shall remove all its trade
fixtures and any alterations or improvements, subject to the provisions of Section 5.5,
before surrendering the Premises, and shall repair, at its own expense, any damage
to the Premises caused thereby.
When read as a whole, we believe the language in the contract is unambiguous for the
reasons discussed below. The Cammacks suggest that they were not responsible for removing the
items complained of because Section 5.5 of the lease, entitled "Trade Fixtures," does not give them
the right to remove: trade fixtures which they may have installed, plumbing, electrical heating or
air conditioning equipment, floor coverings, tiles, or other materials constituting a part of the
freehold. "Trade Fixtures" have been defined many times by the courts to include:
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such articles as may be annexed to the realty by the tenant to enable him properly or
efficiently to carry on the trade, profession, or enterprise contemplated by the tenancy
contract or in which he is engaged while occupying the premises, and which can be
removed without material or permanent injury to the freehold.
Boyett v. Boegner, 746 S.W.2d 25, 27 (Tex. App.—Houston [1st Dist.] 1988, no pet.); see
Ashford.Com, Inc. v. Crescent Real Estate Funding III, L.P., No. 14-04-00605-CV, 2005
WL 2787014, at *9 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005, no pet.) (mem. op.) (citing
Connelly v. Art & Gary, Inc., 630 S.W.2d 514, 515 (Tex. App.—Corpus Christi 1982, writ ref'd
n.r.e.)). In other words, trade fixtures are those that are only removable without permanent or
material injury to the premises. Ashford.Com, 2005 WL 2787014, at *9; Connelly, 630 S.W.2d at
515. We must reject the Cammacks' argument because the items Eastburn required to be removed
are improvements or alterations, as admitted by Jason Cammack in his affidavit, and, by definition,
are not trade fixtures such that they could be covered by Section 5.5.
We harmonize and give effect to all the lease provisions in relation to the whole instrument
so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Here,
Sections 5.2 and 10.5 set forth the general requirement that the Cammacks must surrender the
premises in good condition, remove all trade fixtures and alterations and improvements, restore the
premises, and repair any damage to the property caused due to removal at their own expense. Even
Section 5.5 reiterates the general requirement that the Cammacks are to leave the property in
"broom-clean condition, and in the condition in which they existed as of the Lease Commencement
Date."
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B. The Cammacks' Breach
When reviewing the laundry list of complaints in Eastburn's demand notice, it is clear that
several of Eastburn's complaints involved failure to clean the premises, a duty that Jason realized he
had, but, by his admission, failed to perform. Although the Cammacks removed their trade fixtures,
according to Eastburn's affidavit, they did nothing to remove their improvements and restore the
premises. Specifically, Jason admitted to not removing the 1,500-gallon grease trap, stainless steel
on the wall behind the stove, vents on the roof of the kitchen area, and the FRP from the walls. He
also admitted to throwing away Eastburn's can lights and replacing them with fluorescent lighting.
Eastburn's uncontroverted affidavit stated the walls had not been repaired with taped and floated
drywall as required by Section 5.5. Eastburn's affidavit also mentioned the Cammacks failed to
make repairs to restore the premises to its condition prior to the lease, including the following
admitted by Jason: failure to repair holes in the roof, ceiling, floor and tile, replace Eastburn's lights
which were thrown away, and cap and cover various gas and plumbing fixtures and an electrical
conduit. Eastburn's uncontroverted affidavit also complains of the Cammacks' failure to repair
damaged or missing molding, a damaged window, and restore the ground where the grease trap was
placed after its removal. Photographs submitted in support of the summary judgment motions
confirm the condition in which the property was left.
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Further, Eastburn's affidavit also established that the Cammacks continually failed to pay rent
on time, a fact that was never contested by the Cammacks. Also, Section 10.5 of the lease, entitled
"Surrender of Premises and Holding Over," provided:
Tenant shall remove all its trade fixtures and any alterations or improvements,
subject to the provisions of Section 5.5, before surrendering the Premises, and shall
repair, at its own expense, any damage to the Premises caused thereby. Tenant's
obligations to observe or perform this covenant shall survive the expiration or other
termination of this lease. If Tenant remains in possession of the Premises after the
expiration of the tenancy created hereunder, whether or not with the consent or
acquiescence of the Landlord, and without the execution of a new lease, Tenant, at
the option of landlord, shall be deemed to be occupying the Premises as a tenant at
will on a month-to-month tenancy.
Because the Cammacks failed to remove their improvements and restore the premises, they were
subject to the holdover provision under the lease. The affidavit of Jason states the lease terminated
on June 30, 2007, and that Eastburn changed the locks on July 1, 2007, and only allowed entry onto
the premises during her business hours, as stated in the lease. He complains that the Cammacks
should not be held liable for holdover damages because Section 5.5 of the lease allowed a five-day
period to remove trade fixtures. However, this five-day period was allowed only if the Cammacks
were not in default, and did not guarantee twenty-four-hour access. Thus, the Cammacks failed to
present a genuine issue of material fact to counter Eastburn's holdover claim.
In sum, the summary judgment evidence left no issue of material fact regarding the
Cammacks' breach of lease.
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C. Damages and Attorney's Fees
On appeal, the Cammacks do not challenge the amount of damages, but simply claim
Eastburn was not entitled to recover them because she was not entitled to summary judgment. We
overrule this point of error.5
The lease agreement provided attorney's fees to the prevailing party for any litigation arising
out of enforcement of the lease. TEX . CIV . PRAC. & REM . CODE ANN . § 38.001(8) (Vernon 2008).
The Cammacks complain that Eastburn's attorney's fees are not reasonable or necessary, especially
since counsel did not furnish a time record. Production of a time record is not essential when
requesting attorney's fees. While reasonableness of an attorney's fee award often presents a question
of fact, an "affidavit filed by the movant's attorney that sets forth his qualifications, his opinion
regarding reasonable attorney's fees, and the basis for his opinion will be sufficient to support
summary judgment, if uncontroverted." In re Estate of Tyner, No 12-08-00232-CV, 2009 WL
1609963, at *4 (Tex. App.—Tyler June 10, 2009, no pet.) (citing Basin Credit Consultants, Inc. v.
Obregon, 2 S.W.3d 372, 373 (Tex. App.—San Antonio 1999, pet. denied)); Haden v. Sacks, No 01-
01-00200-CV, 2009 WL 1270372, at *5 (Tex. App.—Houston [1st Dist.] May 7, 2009, no pet. h.).
Counsel submitted an affidavit of attorney's fees totaling $19,945.00. It detailed the involvement
with the case, stated counsel's associate worked 43.8 hours at the rate of $125.00 per hour, and that
5
The trial court awarded $36,069.06 in damages. This was supported by the uncontroverted
affidavit of Bala Duszik, owner of a construction company, who provided itemized bids and stated
the cost to restore the premises would be $19,155.00, with an additional $16,914.06 to remove the
grease trap and restore the ground.
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he worked 84 hours, 9.2 hours of which were billed at $150.00 per hour and 74.8 hours of which
were billed at $175.00 per hour. Eastburn's affidavit established that she was required to pay these
fees.
Based on a false assumption that the final order denied the "holdover and cleaning claims,"
the Cammacks argue Eastburn should not receive attorney's fees because their counsel did not
segregate the "cleaning and holdover claims" from the restoration claims.6 When a plaintiff seeks
to recover attorney's fees where at least one claim supports an award of attorney's fees and at least
one does not, segregation is required unless the claims arise out of the same transaction and are so
interrelated that the award or denial depends on the same facts. Cotten v. Weatherford Bancshares,
Inc., 187 S.W.3d 687, 709 (Tex. App.—Fort Worth 2006, pet. denied); Lesikar v. Rappeport, 33
S.W.3d 282, 317 (Tex. App.—Texarkana 2002, pet. denied); Flint & Assocs. v. Intercontinental Pipe
& Steel, Inc., 739 S.W.2d 622, 624–25 (Tex. App.—Dallas 1987, writ denied). All of Eastburn's
claims were for breach of the lease, any of which would support an award for attorney's fees.
Further, the claims all arose from the same transaction and involved essentially the same facts.
Segregation of the breach of lease claims was not needed in this case.
Thus, unless the necessity for or the reasonableness of attorney's fees was controverted by
raising a fact question in a manner which would successfully preclude the summary judgment award
of attorney's fees, Eastburn was entitled to have them awarded to her. "[A] summary judgment
6
The final order simply denied the Cammacks' motion for summary judgment and granted
Eastburn's motion. It made no distinction relating to the holdover claims.
16
award of attorney's fees is improper where the nonmovant produces a controverting affidavit
regarding fees." AU Pharm., Inc. v. Boston, 986 S.W.2d 331, 338 (Tex. App.—Texarkana 1999, no
pet.). To constitute proper summary judgment evidence, an affidavit must be made on personal
knowledge, set forth facts which would be admissible in evidence, and show the affiant's
competence. Id.; see TEX . R. CIV . P. 166a(f). "Conclusory statements or statements based purely
on opinion are not competent summary judgment evidence." Hawthorne v. Star Enter., Inc., 45
S.W.3d 757, 759 (Tex. App.—Texarkana 2001, pet. denied); see Haden, 2009 WL 1270372, at *5.
Although an expert witness's opinion testimony in a summary judgment affidavit can defeat a
summary judgment claim, it is the basis of the expert's claim, and not the expert's bare opinions
alone, that can settle a question as a matter of law. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.
1999).
Here, the affidavit submitted by the Cammacks' attorney attempting to controvert the merit
of the movant's summary judgment affidavit supporting an award of attorney's fees which had been
incurred stated, "[t]he attorney fees plaintiff's attorney claims are not necessary or reasonable, and
they are an excessive and bad faith demand" without providing a rationale upon which the statement
was based. The affidavit contains no recitation that the hourly rates charged by Eastburn's attorneys
were unreasonably high, that the time alleged to have been expended was excessive to accomplish
the work which was provided, that work performed by her attorneys was unnecessary to prosecute
the case, or that the work as alleged was not performed. In sum, there is no evidence underlying the
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conclusion that Eastburn's requested attorney's fees at the trial level are unreasonable or unnecessary.
Therefore, since the affidavit does not provide any basis for the statement made, the statement is
simply conclusory in nature. The remainder of the affidavit claims that the fees are unreasonable
because the lease did not support an award for Eastburn, the claims were not segregated, and
Eastburn's summary judgment motion was groundless. These are legal arguments, not facts, which
are resolved in Eastburn's favor. The controverting affidavit makes no mention of Eastburn's
anticipated attorney's fees on appeal, and those fees remain uncontested.
V. Conclusion
We affirm the summary judgment of the trial court on Eastburn's claims, and by implication,
against the Cammacks' counterclaim regarding the security deposit. However, because the trial court
did not adjudicate the Cammacks' remaining counterclaims, we reverse and remand in part for
further proceedings consistent with this opinion.
Bailey C. Moseley
Justice
Date Submitted: July 13, 2009
Date Decided: September 25, 2009
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